Obama Administration Promotes Panic Over “Bullying” To Incite Attacks on Students’ Rights and Well-Being

by Hans Bader on November 15, 2011 · 7 comments

in Legal, Nanny State, Personal Liberty, Sanctimony

Obama administration officials call bullying an “epidemic” and a “pandemic.” But in reality, bullying and violence have steadily gone down in the nation’s schools, as studies funded by the Justice Department have shown.

 As the Associated Press noted in 2010, “There’s been a sharp drop in the percentage of America’s children being bullied or beaten up by their peers, according to a new national survey by experts . . . The study, funded by the U.S. Department of Justice, found that the percentage of children who reported being physically bullied over the past year had declined from nearly 22 percent in 2003 to under 15 percent in 2008.”

The myth that bullying has risen among girls was debunked in a 2010 New York Times column, “The Myth of Mean Girls.” As it noted, “this panic is a hoax. We have examined every major index of crime on which the authorities rely. None show a recent increase in girls’ violence; in fact, every reliable measure shows that violence by girls has been plummeting for years.”

If bullying has gone down, how can it be a pandemic?  By broadening the definition of bullying to include speech and vague power relationships.

The anti-bullying website nobully.com defines even “eye rolling” as bullying, so if you roll your eyes at a bully, you yourself can be accused of “bullying.” Its ridiculously-broad definition has been adopted by schools like Fox Hill and Alvarado Elementary, which define “eye rolling” and “staring” as “bullying.”  As a small middle-schooler, I rolled my eyes at bullies. A recent survey defined bullying to include “the use of one’s . . . popularity to . . . embarrass another person on purpose.”

A student can even be deemed guilty of “bullying” for not inviting a hostile classmate to her birthday party, since social “exclusion” is considered bullying (even though forcing children to invite unwanted guests to their birthday party can violate their right to free association). As a bullying victim noted in response to an article about such broad anti-bullying policies, “as someone who was frequently bullied as a youth, this policy would have required me to invite my own bullies to my birthday party. That sounds exceedingly miserable.”

Forty-five states “have laws requiring public schools to adopt anti-bullying policies,” but there’s no federal law against bullying, in general. That hasn’t stopped the Obama administration from trying to federalize anti-bullying policy. Its StopBullying.gov website defines “teasing” as a form of “bullying,” and “rude” or “hurtful” “text messages” as “cyberbullying.” Since “creating web sites” that “make fun of others” also is deemed “cyberbullying,” conservative websites that poke fun at the president are presumably guilty of cyberbullying under this strange definition. (Law professors like UCLA’s Eugene Volokh have criticized bills by liberal lawmakers like Congresswoman Linda Sanchez (D-Calif.) that would ban some criticism of politicians as cyberbullying.)

School bullying can only violate existing federal law if it involves racial or sexual harassment. Moreover, harassment by students violates federal law only if it’s condoned by school officials, and is severe and pervasive. In its 1999 decision in Davis v. Monroe County Board of Education, the Supreme Court ruled that schools can be sued “only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” As it emphasized, “Damages are not available for simple acts of teasing and name-calling,” nor are they available for even “severe one-on-one peer harassment” if it occurs just a “single” time.

Thus, federal law does not ban most bullying.

To be actionable, harassment in school must be both severe “and” pervasive, rather than just severe “or” pervasive, unlike in the workplace. This limit on liability may have been a response to Justice Kennedy’s dissent, which noted that court rulings had cited the First Amendment to strike down campus harassment codes modeled on workplace harassment laws. 

Federal civil-rights laws do not ban sexual-orientation discrimination. By contrast, most school districts do prohibit anti-gay harassment. Many states and municipalities do have gay-rights laws banning sexual-orientation harassment, and most states have hate-crimes laws that cover gays more broadly than federal law.

Despite the fact that federal law does not prohibit anti-gay harassment, the Obama administration has told the nation’s school officials that they may be liable for bullying, including anti-gay bullying. In an October 2010 letter, the Education Department told the nation’s school officials to take “steps to reduce bullying in schools,” saying that some bullying “may trigger responsibilities” under federal laws “enforced by the Department’s Office for Civil Rights.” Contrary to the Supreme Court’s Davis decision, the letter told schools that conduct “does not have to . . . involve repeated incidents” to be illegal, and need not be “severe” as long as it is “pervasive or persistent.”

The letter falsely suggested that anti-gay harassment is usually discrimination based on sex. It cited as illegal “gender-based harassment” a case in which “a gay high school student was called names.” By contrast, court rulings have often dismissed lawsuits over homophobic sexual harassment in cases like Wolfe v. Fayetteville School District, Simonton v. Runyon, Higgins v. New Balance, and Schroeder v. Hamilton School District. (Admittedly, a minority of courts, like the liberal Ninth Circuit, have managed to effectively equate most forms of sexual-orientation harassment with gender-based harassment.)

The Education Department’s letter was interpreted by some news reports as saying federal law already bans bullying in general, and anti-gay harassment. “The Department of Education states that federal education anti-discrimination laws provide protection against harassment of gay and lesbian students,” noted an approving commentary at the liberal American Constitution Society.

The Education Department also took aim at student speech outside of schools, such as “graphic and written statements” on the “Internet.” It did so even though the Supreme Court’s Davis decision based liability on the fact that the school had  “custodial” power over students at school, and “the misconduct” occurred “during school hours and on school grounds.” It did so even though cases like Lam v. University of Missouri rejected lawsuits over off-campus conduct.

The anti-bullying panic has enriched high-paid consultants. After New Jersey passed an anti-bullying law, hundreds of schools “snapped up a $1,295 package put together by a consulting firm that includes a 100-page manual.”

Federalizing bullying would harm civil liberties and falsely accused people. The Education Department has already argued that the existence of a federal law banning sexual harassment overrides traditional protections in school disciplinary proceedings for students accused of harassment, protections like the clear-and-convincing evidence standard most colleges once used. It has also argued that students should not be allowed to cross-examine their accusers, and that colleges should investigate based on anonymous allegations. It took those positions in a 2011 letter that I criticized as legally-unfounded in The Washington Examiner. (I once worked as an attorney in the Education Department’s Office for Civil Rights).  Under federal pressure, many colleges recently reduced safeguards against false allegations.

Banning all eye-rolling as “bullying” violates the First Amendment under the Third Circuit Court of Appeals’ decision in Saxe v. State College Area School District, which invalidated a harassment code that banned isolated instances of hostile speech, holding that even a hostile “purpose” is not always reason enough to ban speech that is neither lewd nor disruptive.

And banning all teasing is harmful, according to psychologist Dacher Keltner, who noted in The New York Times that teasing is educational for children and teaches them “the wisdom of laughing at ourselves, and not taking the self too seriously.”

Some anti-violence activists criticize the current panic over bullying, and say it diverts attention away from more serious safety issues. “Teasing and bullying aren’t an issue in our community. Youths killing and maiming other youths is,” said Ron Moten, co-founder of the anti-youth-violence group Peaceoholics. “The new movement is not about children. It’s about politics.” Besides, Mr. Moten said, schools can’t “police everything a kid says.”

Legal mandates imposed on schools in the name of preventing bullying can have bad consequences for child development. As a school administrator noted after passage of New Jersey’s sweeping anti-bullying law, “The anti-bullying law also may not be appropriate for our youngest students, such as kindergartners who are just learning how to socialize with their peers. Previously, name-calling or shoving on the playground could be handled on the spot as a teachable moment, with the teacher reinforcing the appropriate behavior. That’s no longer the case. Now it has to be documented, reviewed and resolved by everyone from the teacher to the anti-bullying specialist, principal, superintendent and local board of education.”

Bill November 15, 2011 at 4:11 pm

Hans Bader should be embarrassed at having written this.

OpenMarket should be embarrassed for having published it.

I’m willing to bet neither are.

How sad that is.

john November 20, 2011 at 5:41 pm

Bill’s comment is what’s sad. He decries the article but can’t give a single reason why.

Mebane November 15, 2011 at 9:46 pm

Great commentary! I learned a lot from reading this blog post.

It’s too bad so many government officials are trying to use a mythical rise in bullying to justify actual government bullying of students and serious deprivations of their constitutional rights.

Gloria November 16, 2011 at 2:41 pm

Education is the responsibility of the states. The constant intrusions into education by the federal government, including both regulations like the ones described above and funding, have decimated the quality of American education. The bureaucratization of education by the federal government has created a situation that is remarkably like that found in the soviets of the 1950s, described by Russian novelists about daily life in the former USSR. Every word was construed as a possible criticism of Stalin; now in America even a roll of the eyes can be construed as a criticism of politically correct policies.

To Be Twice Victimized November 16, 2011 at 4:21 pm

I was bullied so horrendously (7 concussions, one broken arm, etc) that three decades later, I have PTSD so severe that one professor described me as “worse than the kids he saw coming back from Vietnam in the ’70s.” I startle worse than folk just back from the worst of duties in Iraq.

And I say this anti-bullying is bullshit. All it is going to do is bully me a second time.

I am not always the most social of people. God help anyone who walks up quickly behind me. And a lot of this is defensive against stuff that I really don’t have to worry about anymore because bullies (true bullies) are inherent cowards and I can psychologically scare them enough to make them want to leave me alone.

If you start mocking me or calling me names, you will first get a non-verbal warning, and then a polite verbal request to stop, and if you ignore both, you are going to really want to stop when you notice (a) all of your supporters have fled and (b) you are confronting someone who is fully prepared to be a bigger badder bully than you. It always works — bullies are cowards and run in terror when confronted.

But now they will be able to take the survival tactics I have learned and get me into trouble for that. I, not they, will be the one facing bullying charges. For being the victim — victimized yet again.

This is bullshit.

To Be Twice Victimized November 16, 2011 at 10:36 pm

Two more things.

First, I still have the piece of graphite (fortunately not “lead” from the pencil that a fellow student (female) jammed into my arm because she and the other girls in the classroom thought it was funny. I have forgotten why they thought it was funny or even who she was let alone what became of her. The Christian in me wants to think that she grew up (as did the kid who broke my arm) and has repented and regrets her actions (as he does) and I can forgive her (as I did him). The Christian in me hopes this — but the other side hopes she wound up getting pregnant by some guy who beat the s*** out of her on a daily basis, and that her life went downhill from there.

But the simple fact is that I haven’t thought about her in 35 years.

What I will never forget, what I have thought about, and what was far worse is what the teacher – whom I despise to this day because of this — said and did when she returned to the classroom. I don’t remember exactly why, but she knew that there had been some disturbance and all the bully’s buddies lied to cover for her. So it was all my fault. My fault for having this girl, who was supposed to be on the other side of the room anyway, getting up, coming over to where I was, and stabbing me with a pencil to see me jump. My fault.

Which goes to my second and more important point: anti-bullying rules will only become yet another cudgel in the quiver of the bullies (who already have popular peer support, they couldn’t be bullies without that) and the victims will be further victimized.

These anti-bully laws — the state ones and this federal one — would not have helped me. They inevitably would have been used against me by specific people I can still remember to this day — people whom I will never forgive — and if the sole goal is to prevent childhood suicide, let me just say that in such circumstance, in the intentable situation of being bullied by both the bullies and the admin/law, suicide would be the only viable option.

I do not say that lightly and as one who once was there, I plea with you folks who honestly want to address bullying (and not just impose more governmental fiats to further restrict individual liberties) to not go about it this way. You will do nothing but increase the number of children who see no other way out. It is hard enough to fight back, but with that option gone, death truly is the only other one…

Sal November 19, 2011 at 2:01 pm

How sad that the Obama Administration is using a panic over bullying to attack free speech rights, freedom of speech and association, and the First Amendment.

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